HKSAR v. CHONG HAK LIAN

HCMA 76/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 76 OF 2002

(ON APPEAL FROM TMC 3329/2001)

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J U D G M E N T

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1. On 5 December 2001 the appellant was convicted upon his own plea of 3 charges of theft at Tuen Mun Magistrates Court. He was sentenced to 12 months imprisonment on each charge to be served concurrently. It was against sentence that he appealed.

2. The facts of the offences can be shortly stated in this way. The appellant stole 4 cheques from his employer and cashed 2 of them obtaining $30,000.00

3. In his reasons for sentence the learned Magistrate said that he took a serious view of the offences which involved a breach of trust and which warranted a substantial term of imprisonment.

4. He then proceeded to state that in approaching sentence he had found Thomas' 'Principles of Sentencing' (2nd Edition) to be of assistance and he cited 3 English cases from that work each of which was decided prior to 1976.

5. That 2nd edition was published in 1970 and reprinted in 1980 and, suffice it to say, that a good deal of water has passed under the bridge since then. More specifically the case of R v Barrick [1985] 81 Cr. App. R 78 (which has found some favour with the Court of Appeal in Hong Kong) has been decided.

6. In deciding that the sentence imposed upon this appellant was manifestly excessive I need do no more than point to the judgment delivered in HKSAR v Lo Shiu Wah (Criminal Appeal No. 399 of 1999).

7. This appeal is allowed to the extent that the sentence of 12 months imprisonment is set aside and is replaced by one of 8 months.